Legal validity of Sec. 144, Cr.P.C.

Introduction

Under the Criminal Code (under this Code) the supreme power is vested in the Magistrate. He should be in charge of dealing with emerging situations. One such provision concerns the Magistrates’ ability to impose limits on personal liberty. Whether in a specific area or in a city itself, where the situation has the potential to cause instability or the risk of peace in such an area, in certain disputes.

In short, Section 144 provides the power to issue orders in an emergency. In the event of an emergency or accident. Certain classes of special magistrates can make such orders. If in their opinion there is sufficient reason to proceed under section and immediate prevention or immediate remedy is desirable. It requires the magistrate to issue an order in writing setting out the details of the case for the order to be issue in the manner provided by the section 134 Criminal Procedure Code.

The words of this section take into account the situation in which the power was confer when it could be used in the Magistrate’s trial – automatic satisfaction. However, the judgment pronouncement as view in the paper indicates that certain critical circumstances have been imposed by the Court on these substantial powers. Therefore, as the case law discussed would suggest, not only would the Court consider those cases as examine by the Magistrate. But it would also take into account the material fact. That is when the orders issued under section 144 were unclear or directed to a specific person.

Therefore, in many cases orders issue under a provision may be waive not on the grounds that such orders were not guaranteed by circumstances. Also on the grounds that the orders granted did not specify the place where the restriction was imposed and so forth. The courts have already emphasize the importance of following the guidelines outlined under section 134 and in various sections of section 144.

This article begins its analysis by first describing the scope of section 144. Followed by explanations on the conditions that need to be met in order to enter it. In addition to the paper, details of the order under this section are specified. Such as its content, duration, and mode of operation. While explaining the above, judicial pronouncements have been relied upon to emphasize and clarify the meaning of the paragraph.

 Scope of section 144 of the Criminal Code

An action under this category is an expectation. It is used to limit certain actions even before they occur. Expected restrictions are often imposed in emergencies. When there is a risk of arrest of a specific event capable of causing great public peace or damage to public peace. The context of the action under S.144 is the urgency of the situation; its effectiveness is the ability to prevent certain dangerous events. The maintenance of public peace and tranquillity is the primary function of the Government. The aforementioned powers are vested in the administration of the power to make that work effectively in emerging situations.

In the case of the controversy of Radhe Das v. Jairam Mahtothe[1], it was more than a building. The appellants applied for a restraint against the respondent from entering the premises. Which was ordered by the Magistrate under section 144. However, while the courts were proceeding in the same way the plaintiffs also applied for the same denial of applicants. That was subsequently allowed Magistrate under the same section. Respondents respond to this order bringing the current action that their right over the property was violated by an order. The court held that if the situation calls for any action, which in turn prevents public peace and calm, human rights can be violated for the benefit of the whole community. In the words of:

“Empowering under this section, the Magistrate will be of the view that immediate prevention or immediate remedy is desirable. And that the proposed alternative is likely to prevent disturbances of public peace or protest or solidarity. In such cases, privacy rights should provide an opportunity.”

The principles to be borne in mind before the application of this section is also clarified in the case of Manzur Hasan v. Muhammad Zaman[2] and were approved in the case of Shaik Piru Bux v Kalandi Pati[3]. Following was outlined:

1. Status and power emergency will be used to maintain public peace and calm
2. Private rights may be temporarily terminated in the event of a conflict between public interest and private rights
3. The questions of principal property or rights of rights or disputes of public nature are not open to judicial proceedings. Specifically in terms of section 144.
4. Where such questions are already been decide by civil courts or by a judicial decree. The Magistrate must exercise its powers under section 144 to assist those rights and against those who interfere with its legal functioning.
5. The consideration should not be that restriction will affect only a small section of society rather than a large section with words and power to fight.

It gives full power to certain Magistrates to take immediate action in emergencies. In case where immediate protection or immediate remedy is desirable. If there is no urgent call for immediate use or concern about people’s health, health or safety risk, etc. The Magistrate cannot issue an order under this section. Since it is possible to do something completely and even to get involved it is clear that the emergency must be sudden and the consequences are grave enough. Without it the use of force would have been useless. The Magistrate must use their discretion to determine whether the matter is urgent to seek an order under this section.

 The powers conferred under this section are unique. They enable them to suspend the legal rights of people if they think such a suspension will be for public peace and security. However, the Magistrate should remember that all citizens have the right to make public or private complaints and to ask how they will be resolved. This right cannot be limited as long as it is e provided that it is used lawfully. It is an unlawful thought to issue an order under this section in connection with the threat posed by the danger of a breach of public peace.

However, section 144 is intended to provide for paramedics. It is not unreasonable that in an emergency when a protest is held and a matter of serious disturbance to the public peace. The Magistrate is expected to discuss the decision and decide the rights of the parties before taking action.

The appellant, in this case, was named the great Pir of Sind. And held an annual religious festival, which was rejected by a large number of Muslims. Given the situation the state DM with an order under section 144 forbade the celebration of the ‘festival’. The order was opposed by the pir and his followers as it limited their privileges of service. The court disagreed with the dispute and responded to the dispute as follows:

“This section is intended to provide for paramedics, and there is no doubt that if a dispute arises when arrests and where there is a serious threat to public order the magistrate is required to consider the decision and decide the rights of the parties before taking action.”

The order must be stated based on the Magistrate’s decision to use the section. The Magistrate’s mere statement that he considered the case to be close was not sufficient to enable him. If the facts presented by him showed that there was no urgent need to act on these communications.

Another point to consider is that an order under section 144 cannot be of a permanent or indefinite nature. This happened in the case of Acharya Jagdisharanand Avadhut v. Police Commissioner, Calcutta[4] where Anand Margis was prohibited from conducting Tandava dance on the streets or carrying bullets in their walls, by order of the Commission under section 144 of this code. The first order continue for two months. After all the gaps two months the Commission again issued the same order. This recurrence of the order is disputed.

The High Court treated the Commission’s action as an abuse of power and explained on page 58 that:

“Parliament has never intended for the life of an order under section 144 of this code to continue to function for more than two months when it was made by a Magistrate. The scheme of that section does not take into account repeated orders and in such cases, steps should always be taken under other legal provisions when individual disputes arise will constitute an abuse of the powers conferred by section 144 of the Code.:

Reason for application of section 144

Orders under this section are appropriate only if it is possible to prevent further events from occurring

1. Anger: Anger can be physical or mental. In the case of physical provocation a certain degree of intimacy between the offending object and the provocation is required. But n the case of psychological provocation there is no question of being close. This category covers both types of provocation. Section 144 of the Criminal Procedure Code, may even be used in newspapers in appropriate cases for breach of the peace or for making nuisances, dangerous to health or health or to offending officers who are legally employed. Or where an order under this section deals with a ‘problem’ there must be a danger to the health or well-being of the person concerned, or of a dispute or dispute or breach of the peace. Abusive statements, as well as articles of abuse that are not related to senior officers, will not be dealt with under this section. Uless it can result in a breach of peace or endangering health or well-being. This section should not be abused by using it to deal with abusive articles and pollution. Thar may ave resulted in a breach of the peace.
2. Harm to Personal Health: The Magistrate does not have the authority to make an order under this section to protect property. He or she must be satisfied that the guidance may have protected against injury or risk of injury to one’s health or safety. Most of the actions proposed by this section are of the nature that if they are not prohibited they will be guilty of an offense. But there is at least one thing where this limited perspective is impossible. The term ‘injury’ as defined under section 44 of the IPC says’ any unlawful injury to any person, body, mind, reputation or property ‘, and the word’ illegal ‘defined under section 43 of the same Code applies’ to it all that is permitted by law, or which provides the basis for public action ‘. At any time, injury is caused by a person the method of delivery of this section may be taken in those cases. Therefore, even if the act or measure identified is not equal to the offense in favor of termination may provide grounds for civil action only, the protection of this section shall extend to that person.
3. Disruption of public peace: An act prohibited under this section must prevent it in case of obstruction, etc., or disturbance of public peace, etc. It is not enough to say that by extending the many possibilities one after the other, it is possible to establish a link of cause and effect between forbidden action and disturbances of public peace. The communication must be logical or imaginative and not speculative or remote. Where there are no unusual circumstances in the area and the matter is or is simply visible, the absence of any close or reasonable connection between the prohibited act and the danger of public peace will be the reason for which the High Court will be involved.
4. An order cannot be made to give one party a chance: This clause gives the Magistrate great power, and the imminent danger of public peace may allow the interruption of the private parties. But a section should not be asked by anyone in a dispute to defend a material advantage over another.

Legal validity of this section

Hidayutallah, C. J., said in the case of Madhu Likaye v. S.D.M. Monghyr[5], that section 144 of the Criminal Procedure Code is unconstitutional if properly applied and the fact that it may have been abused is not justified. And the provisions of the Code that are properly understood do not exceed the limits set out in the Constitution to limit the freedom guaranteed to it and that is why the Court held that section 144 of the Criminal Code is valid and constitutional.

Since the size of the order has been challenged, it cannot be said that because of the sheer force of section 144 that gives certain magistrates, it imposes unreasonable limits on certain fundamental rights. Such delegation of power to the Magistrate is therefore not a violation of the rights guaranteed under the Constitution. In this case, the Magistrate issued a restraining order under section 144 to avoid disputes between members of the two trade unions. The petitioner here challenged the provision as enabling the Magistrate. Calling the power not to conflict with the court stated that since this power can only be exercised in emergencies, it can in some way, stop the magistrate’s action. Just because it has the potential to be abusive does not mean that the category should be beaten down.

There were several arguments raised by the petitioner’s counsel, however; the Supreme Court overturned each of them individually. There were five points included in the decision, which explained that the constitution of section 144 follows this.

1. Although the Magistrate has the power under this section to institute ex-parte¸ orders, the procedure is followed to give notice to the person to whom the order was delivered. In cases of extreme difficulty the Magistrate must resort to the transfer of an external order.
2. Also, persons who are saddened by the order have the right to challenge the order for reasons they deem appropriate. This supports the view that the powers conferred under this section are not arbitrary.
3. To emphasize the above, the opportunity to hear and show cause is also given to the challenger of the magistrate. Therefore, the principles of natural justice are also subject to this section.
4. The court subsequently reiterated that the fact that the aggrieved party had the right to challenge the provision of the order, made the Magistrate’s action reasonable and supportive of the just cause.
5. Ultimately the High Court’s power to amend under section 435 of the Code read with section 439 of this code also creates the contention that an order under section 144 is unconstitutional. The High Court may dispute the order or request the Magistrate for details of the facts, thereby confirming the Magistrate’s response.

Since the Supreme Court’s decision in the above-mentioned case there have been several cases where the courts have adopted this approach and concluded that a restraint action under section 144 is permissible.

Also, any restriction, which goes against the basic principles of freedom and justice, cannot be considered legitimate. Another test to determine whether a limitation is reasonable or not is to determine whether the delegated person has the right to be represented against the limits imposed or proposed to be imposed. No person may be deprived of his liberty without having the opportunity to be heard in defense and that opportunity must be sufficient, impartial, and reasonable. Besides, the courts should see that the limits are excessive even if they are imposed in a contradictory manner.

Condition precedent to assuming jurisdiction

The first thing the Magistrate has been satisfied is that there is sufficient reason to proceed under this section and it is necessary to prevent or delay the remedy, and the second thing to establish is that the Magistrate must consider whether the way he wants to provide, is one that may prevent or prevent the interruption, annoyance or injury of any person employed. Legal, or risk to human health, health, or safety disturbance of public peace or violence or obstruction. Instances requiring an order must be emergency, and an order passed in the absence of an emergency is invalid. The Magistrate must decide as a matter of fact that the dispute may have resulted in a breach of the peace or disturbed the peace of the community.

Urgency or seizure is important in its treatment under section 144 of the Code, and orders to be passed under this section must be temporary as clearly indicated by subsection (4) of section 144 to provide that no order under this section shall remain in effect for more than two months; provided that, in cases where there is a risk to human health, health or safety, or potential conflict or conflict, the State Government by notification in the Official Gazette instructs otherwise. Where this preliminary rule of law is not found to exist, his order must be regarded as an order without the power of law and any opinion placed thereon shall be deemed to be invalid or unlawful.

This section should be used in emergencies and should not be allowed to take place in any other legal provision that would be appropriate. And before proceeding under this section, the Magistrate must hold an inquiry and record the urgency of the matter. For purposes of section 144, it is required that the Magistrate issuing this order must believe that an accidental or accidental concern exists. There is no evidence that any of these concerns are necessary. The Magistrate’s records must indicate that there is an emergency that requires an ex parte order under this section or that there is not enough time to give notice to the party affected there.

The order under this section must be based on relevant evidence. In the absence of such evidence, the Magistrate will not issue an order only if there is a one-party complaint. The proper use of this section is a temporary emergency or custody of the Status Quo and not passing an influential order of enforcement result allows one of the two opposing parties where it can weaken its other common legal right and remedy and ultimately for all practical purposes.

Order contents

• Order must be in writing – Words used under section 144 are “written instructions” and therefore an order issued under this section must always be in writing. There must be a written order addressed to the respondent and announced before he can be prosecuted for disobeying the order. If there is no written form, the prosecutor under section 188, I.P.C., because of mere oral disobedience will not prevail.

Since this section empowers the Magistrate to interfere with academic freedom, it must give its order enough clearness to make the public, or the people affected by it, aware of what they are prohibited from doing. It is for this reason that section 144 itself makes it mandatory for the Magistrate in any such manner to show material facts, expressing such an order. However, a Magistrate doesn’t need to take evidence before issuing such an order.

• The order must be clear and precise in terms – The order under this section must be single, sure, and clear in terms. Section 144 (1) and (2); do not envisage the passing of a conditional discharge or late pregnancy. This is important, because the person (or person) to whom the order was given must know exactly what is forbidden to do.

The Magistrate needs to identify the following in the order under section 144. First, ‘prohibited action’ and secondly ‘persons prohibited from doing so’. The command must contain the names of specific individuals and the prohibited action must be specified with the correct accuracy. Blurring of any kind should be avoided as much as possible.

• ‘Material facts’ must be stated in the order – The order must contain a statement of ‘material fact’, which the magistrate considers as evidence of the case and in the construction of his order. The provision of section 144 only requires that ‘material facts’ are stated and not the reasons or reasons or the detailed condition of the information upon which the order is based. When the order did not state material facts, it was set aside. To file a cause of action under section 154, there must be a connection of the reason between the prohibited action and the danger withheld.

Where the order does not indicate that there is an emergency with which the order was issued, the order cannot be kept.

• Prohibition must be clearly defined – The object, prohibited, must be clearly defined. It is not wrong to leave doubts about whether or not people are forbidden to do something. The order must state to whom this customary law applies, and they are forbidden to do or need to be done. Unless the order is directed to the general public (as under section 3), the persons to whom the instruction is directed should be specified. When the order is vague and clear, it becomes very difficult to be enforced. So, for example, if an order is directed to the public, which usually enters public or private streets in a particular city, such an order may be considered clear enough to place it, and therefore cannot be held inaccurate. It should be warned, however, that the length of the order should be wide and urgent.

Dismissal order service under section 144

In this section of the paper, we will deal with the next category of orders issued under section 144. Once the order form is ready, the Magistrate must provide that order to those specifically mentioned in the directive. In this regard, section 134 of the Criminal Procedure Code is appealed. However, there may arise times when it is not possible to distinguish between those individuals whose behavior should be controlled and those who behave clearly. In these cases a general order may be required when the population is so large that the distinction between them and the general public cannot be made; in these cases the regular ordering service is done by publishing an order in the daily newspaper etc.

However, under section 134 the order must be transferred to the person for whom it was made (paragraph 1); alternatively, if such personal action is not possible a copy of the said order must be attached to the premises (s) as may be deemed appropriate (paragraph 2). The notice issued must follow the terms of the transfer order and should not be governed by general terms. Therefore, if the process not followed is not properly followed, the order made will be considered illegal. Such a person shall not be convicted of a contravention of an order under section 188 of the Criminal Procedure Code. However, if it is not shown that the person referred to the order knew the order being issued to him; any disrespect in the manner of the nomination would not be effective in itself.

Order Time

As clearly stated in paragraph, any order passed under section 144 shall be subject to subsection (4) and consequently shall be valid for two months. As mentioned earlier, it is not the Magistrate’s authority to renew or renew his order from time to time. Such use of force can be seen as an abuse of power.

The government of the country may extend this period to two months up to six months from the date of the commencement of the decree if it finds it necessary to prevent certain conditions that cause disturbances of security, health, or peace. Although a power conferred by a competent national government, there can be a review of an order by the Magistrate if the court finds unlawful or improper use of force.

Conclusion

After careful analysis of the relevant part in the proclamation of judicial pronouncements and academic commentary, the paper can be concluded by stating that, section 144, with close attention to the content, is an essential element of the measures undertaken by the governing body of any district to protect and manage emergencies.

There have been many cases filed in terms of this section challenging the constitutionality of this section and an equal number of decisions supporting its legitimacy. Although, the discretionary powers conferred upon the Magistrate under this section, there are various methods of its use to prevent any conflict or systemic injustice. The fact that the High Court can review a Magistrate’s order under this section makes the exercise of that power more reasonable.

Also, the increasing incidents of protests and other events that disturbed the peace and calm of the community have forced the magistrates to have such power to protect the common people for the security and peace that are so important in their lives.

In this case, however, it may be decided that there is a need to limit the delegation of power by the legislature to deal with emerging situations, as well as the need to protect the personal and other freedoms granted to citizens under the agreement. The fundamental rights of the Constitution, especially Article 21.

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References

[1] 123 Ind Cas 73

[2] (1921) ILR 43 All 692

[3] 1969 SCR (2) 563

[4] 1984 SCR (1) 447

[5] 1971 SCR (2) 711